Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Still more on sex offender residency restrictions

I've written numerous times about the goofiness of sex offender residency restrictions (like I did here), in which legislatures and city councils enact ever-more restrictive laws on where sex offenders can live, despite a dearth of evidence that the laws do any good, and some evidence they're actually harmful.  Back in October, I wrote about the oral arguments the Ohio Supreme Court had in Hyle v. Porter.  The case presented the issue of whether the 2003 law prohibiting sex offenders from living within 1000 feet of a school, pre-school, or child care center could be applied retroactively.  (The law was originally designated as RC 2950.031, and later recodified as 2950.034.)  The 1st District had upheld the law, but the 2nd District had come to a contrary conclusion.

Yesterday the Court handed down its decision and held that the statutes couldn't be applied to an offender who'd bought a home and committed his offense before the statute went into effect in 2003.  That came as a bit of a surprise to me, for reasons that should be obvious to anyone familiar with an elected judiciary and how certain issues can be framed.  (Fortunately, there are restrictions on what judicial candidates can say; you won't be seeing any "Evelyn Lundberg Stratton:  Voted to Let Sex Offenders Live in Your Neighborhood!" ads.)  Still, after reading the decision, it's not as sweeping nor as definitive a conclusion to the issue as it might have been.

The Court cuts to the chase quickly.  Most arguments have focused on the constitutional issue of the legitimacy of kicking people out of their homes for something they did before the law was passed.  This has largely followed an ex post facto analysis, although the Georgia Supreme Court came up with an interesting argument I detailed here, holding that retroactive application of the law violated the "takings" clause -- that the government can't take your property without due compensation.  But, the Court explains, before they can get to the issue of constitutionality, they have to consider the issue of statutory construction:  under RC 1.48, a statute is presumed to apply only prospectively unless "expressly made retrospective."

The state had made a couple of arguments here.  First, the statute used the past tense to describe sex offenders:  "No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to..." various categories of sex offenses fall within the statute.  Thus, the state argued, when it was passed in 2003, the legislature obviously contemplated that the statute would apply to people who'd been convicted prior to that date.  Second, the statute provided that "no person * * * shall establish a residence or occupy residential premises within" the specified ranges.  Again, the dichotomy between establishing a residence and occupying residential premises, according to the state, indicated an intent to make the law retrospective:  a sex offender was prohibited from establishing a residence within the proscribed bounds, but was also prohibited from continuing to occupy a residence within that area once the law took effect.

Frankly, I've seen worse arguments.  (Hell, I've made worse arguments.  Like, in the past 24 hours.)  Still, the Court could legitimately hang its hat on the "express" requirement.  The legislature didn't expressly make the restriction retroactive, so the Court could shoot it down on that basis.  By doing so, it managed to avoid discussing all that icky constitutional stuff.

Of course, that leaves open the possibility that the legislature will remedy the problem by repassing the law, this time with an express statement that it's intended to be retroactive.  Whether it will do that or not is another matter.  Given the mounting evidence that the restrictions do no good and might even be counterproductive, plus the willingness of organizations not normally deemed pro-defendant to make those arguments, it may be an effort to legislate retroactivity might come to nothing.

Or not.  After all, there's no prohibition against someone angling for a state senate slot from running "My Opponent:  Voted to Let Sex Offenders Live in Your Neighborhood!" ads.  Given the state of politics in this country, betting against that happening isn't something I'd care to do.

Search

Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses